What is a Power of Attorney?
A Power of Attorney is a legal instrument that provides someone you trust with the authority to make decisions on your behalf and manage your affairs.
Resignation as the Attorney
In Ontario, the termination of a Power of Attorney (POA) is a legal process governed by the Substitute Decisions Act, 1992. An attorney under a continuing power of attorney may resign but if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to:
- The grantor;
- Any other attorneys under the power of attorney;
- The person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and
- Unless the power of attorney provides otherwise, the grantor’s spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if,
- the attorney is of the opinion that the grantor is incapable of managing property (applicable for Powers of Attorney for Property), and
- the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.
If an attorney decides to resign, they must take reasonable steps to inform those they previously dealt with on behalf of the grantor and who may require further assistance on behalf of the grantor. For instance, if the attorney had registered a Power of Attorney with the grantor’s bank and had been managing the grantor’s bank account, they must inform the bank of their resignation. Likewise, if the attorney is handling the grantor’s care facility as an Attorney for Personal Care, they must notify the facility of their resignation.
Your resignation will only be deemed effective upon its delivery to all parties legally entitled to receive a copy, provided it is presented in an accessible format. Failure to deliver your resignation to any entitled party may make it invalid.
If the Power of Attorney document does not provide for a substitute Attorney, then the Power of Attorney will be terminated once the Attorney resigns.
Notifying Relevant Parties
When an attorney resigns, the resigning attorney must provide written notice to the grantor, other attorneys named in the Power of Attorney document, and any substitute attorneys. Additionally, the attorney must notify the grantor’s bank and care facility, if applicable, to ensure that they are aware of the change in authority. The attorney must also make reasonable efforts to notify any other parties with whom they have dealt on behalf of the grantor, such as financial institutions, healthcare providers, and other service providers.
Documenting the Resignation
The resignation of an attorney must be documented in writing and signed by the attorney. The document should include the date of resignation, the name of the grantor, and the name of the Power of Attorney document. The attorney should also provide a copy of the resignation to the grantor, other attorneys, and any substitute attorneys. It is recommended that the attorney keep a record of the resignation, including the date and method of delivery, to ensure that the resignation is properly documented. This documentation ensures that all parties know of the resignation and that there is a clear record of the attorney’s decision to step down.
Substitute Attorney
If the Power of Attorney document provides for a substitute attorney, the substitute attorney will assume the responsibilities of the resigning attorney. The substitute attorney must be notified of the resignation and accept the appointment before assuming the responsibilities. If the Power of Attorney document does not provide for a substitute attorney, the grantor may need to appoint a new attorney or seek the assistance of the Public Guardian and Trustee. This ensures that there is always someone available to manage the grantor’s affairs and that there is no gap in managing their property or personal care.
Next Steps for the Grantor
Following the resignation of an attorney, the grantor should take the following steps:
- Review the Power of Attorney document to determine if a substitute attorney is named.
- If a substitute attorney is named, notify the substitute attorney of the resignation and ensure that they accept the appointment.
- If no substitute attorney is named, consider appointing a new attorney or seeking the assistance of the Public Guardian and Trustee.
- Notify all relevant parties, including financial institutions and healthcare providers, of the change in authority.
How We Can Help
If you need a Lawyer for your Power of Attorney, contact us today and see how we can assist you.
The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.
